BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1B)(b)(i) and 8(1B)(b)(ii) of the Broadcasting Act 1989
Breakfast – presenter commented on a magazine article about singer Susan Boyle that said she suffered from a mild intellectual disability – presenter stated that Ms Boyle was “retarded” and that if you looked carefully at her picture you could “make it out” – allegedly in breach of good taste and decency, fairness, discrimination and denigration, children’s interests and responsible programming standards – action taken by broadcaster after upholding a breach of good taste and decency allegedly inadequate

Findings
Standard 1 (good taste and decency) – action taken insufficient – upheld

Standard 7 (discrimination and denigration) – host’s comments encouraged discrimination against people with intellectual disabilities – majority – upheld

Order
Section 13(1)(a) – broadcast statement

This headnote does not form part of the decision.

Broadcast

[1]   An episode of Breakfast was broadcast on TV One at 6.30am on Monday 23 November 2009. In the programme’s regular weekly segment called “What’s in the Mags”, the presenters, Paul Henry and Pippa Wetzell, discussed features in the Woman’s Weekly, including an article on the singer Susan Boyle.

[2]   During the discussion about Ms Boyle, Mr Henry briefly noted that the article revealed that she had been “ritualistically beaten” as a child, including by her teachers. Mr Henry laughed as he talked about the revelation. The following exchange took place between the presenters:

Mr Henry:     Here’s the really interesting revelation in the latest magazine, she is in fact,
                   um, retarded [laughs].

Ms Wetzell:  You are shocking.

Mr Henry:     It’s official, no, it’s official she has an intellectual disability. She suffered, what
                   happened was, and this is always bad, she was starved of oxygen and
                   suffered a mild form of intellectual disability. And if you look carefully [holding
                   the magazine up to viewers] you can make it out, can’t you [laughing]?

Ms Wetzell:  You don’t know what you’re talking about. In the New Idea...

Complaints

[3]   Gillian Ashurst, Marian Dean, Dr Nancy Higgins, Janet Hutchinson, Peter Love, Karen McConnochie, Robert Paramo, People First New Zealand Inc (PFNZ), Mark Shanks, Trevor Shaskey and G Sneath made formal complaints to Television New Zealand Ltd, the broadcaster, alleging Mr Henry’s comments had breached broadcasting standards.

Ms Ashurst’s complaint

[4]   Ms Ashurst contended that “Mr Henry’s comments and general attitudes were derogatory toward people with intellectual disabilities”. She considered that his “giggling” use of the word “retard” was particularly offensive, “as was his assertion that you could see Susan was retarded in her photos”.

Ms Dean’s complaint

[5]   Ms Dean argued that Mr Henry’s comments about Ms Boyle were “highly inappropriate and very discriminatory”. She considered that “to laugh about someone because they may have an intellectual disability and were abused” was unacceptable behaviour.

Dr Higgins’ complaint

[6]   Dr Higgins said that she was complaining “because Paul Henry laughed and made jokes about Susan Boyle having an intellectual disability”. She argued that if Ms Boyle had an intellectual disability, there was no reason to laugh at her or to laugh at the bullying she experienced as a child.

[7]   Dr Higgins believed that “Mr Henry should not be on a morning talk show which children could watch, because his attitudes towards disabled people and women are appalling”.

Ms Hutchinson’s complaint

[8]   Ms Hutchinson contended that Mr Henry had “denigrated a member of society” by referring to Ms Boyle as retarded and by saying that people could “make it out” by looking at a photograph of the singer. She also considered that it was in bad taste for Mr Henry to make fun of the abuse suffered by Ms Boyle as a child.

Mr Love’s complaint

[9]   Mr Love said that he was “disgusted” by Mr Henry’s remarks about Ms Boyle and the way in which he had attempted to “brush off the insult as if it were some kind of joke”.

Ms McConnochie’s complaint

[10]   Ms McConnochie argued that Mr Henry’s comments about people with intellectual disabilities and their appearance were unacceptable and discriminatory. She considered that the remarks were “deeply offensive” and “disgusting”.

Mr Paramo’s complaint

[11]   Mr Paramo argued that Mr Henry’s comments had breached standards of good taste and decency and discrimination and denigration. He considered that the comments were offensive and derogatory, and that Mr Henry had laughed at the expense of an individual unable to respond.

PFNZ’s complaint

[12]   PFNZ contended that Mr Henry’s comments had breached standards of good taste and decency and fairness. It argued that the comments were in “gross bad taste, gratuitous, offensive, contrary to decency, humanity” and had marginalised people who had the least ability to answer back.

[13]   PFNZ noted that Mr Henry had been found to have breached broadcasting standards earlier in the year (Brown and TVNZ¹) and it considered that Mr Henry should publicly apologise, as internal action by TVNZ would be insufficient.

Mr Shanks’ complaint

[14]   Mr Shanks argued that Mr Henry’s comments were “despicable” and “offensive”, and that the host had treated Ms Boyle with “no empathy or dignity whatsoever”.

Mr Shaskey’s complaint

[15]   Mr Shaskey stated that Mr Henry’s comments were “highly discriminatory against people with intellectual disabilities” and that they had sent a powerful message to young viewers watching that it was okay to bully children with intellectual disabilities. He contended that the comments had breached good taste and decency and any standards relating to the protection of children.

G Sneath’s complaint

[16]   G Sneath said he was deeply offended by Mr Henry’s “sustained laughter and mirth at the personal tragedy and disability endured by Susan Boyle” and by his mocking of people with intellectual disabilities in general.

Standards

[17]   TVNZ assessed the complaints under Standards 1, 6, 7, 8 and 9 and guidelines 1a, 7a and 9a of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guideline 1a

Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.

Standard 6 Fairness

Broadcasters should deal justly and fairly with any person or organisation taking part or referred to.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Guideline 7a

This standard is not intended to prevent the broadcast of material that is:

(i) factual

(ii) a genuine expression of serious comment, analysis or opinion, or

(iii) legitimate humour, drama or satire.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified;
• display programme classification information;
• adhere to timebands in accordance with Appendix 1;
• are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
• do not deceive or disadvantage the viewer.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.

Guideline 9a

Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material that would disturb or alarm them.

Broadcaster's Response to the Complainants

[18]   With respect to Standard 1 (good taste and decency), TVNZ stated that Mr Henry was known for his challenging sense of humour, that his comments were intended to be light-hearted and comedic, and that there was considerable audience expectation that he would be provocative in his language and manner on occasions. It said that Mr Henry had not intended to cause any offence or hurt and that his comments were made spontaneously on live television.

[19]   However, the broadcaster agreed that the language and tone of the piece would have offended a significant number of viewers and it upheld the complaints that Standard 1 had been breached. It apologised for any offence caused by Mr Henry’s comments and stated that he was well aware of the issues that the complaints had raised and that “he had been reminded of his responsibilities as a broadcaster in this regard”.

[20]   TVNZ said that Mr Henry had made the following publicly released statement to its Complaints Committee:

It was never my intention to cause offence to people with disabilities. It upsets me greatly that anyone would imagine I had intended to cause offence or hurt over this or any other issue.

I am sorry that some people have taken what I said in a way that I never intended.

In fact, I have a great amount of respect for people who rise to the challenges imposed on them in life. The amount of support and coverage I, and the programmes I am associated with, give to these issues is evidence of the commitment we have to these people, their families and friends.

[21]   Turning to Standard 6 (fairness), the broadcaster argued that the only person referred to in Mr Henry’s comments was Susan Boyle and, as such, the standard could only be applied in respect of her and not to intellectually disabled people in general.

[22]   The broadcaster maintained that Mr Henry was well known for his challenging sense of humour and that Breakfast was also well known for containing controversial material on occasion. It reiterated that the comments were intended to be light-hearted and comedic. TVNZ stated that Ms Boyle had spoken openly about her intellectual disability in the article subject to discussion and that Mr Henry often based his humour on celebrities in the magazines.

[23]   TVNZ argued that, while Mr Henry’s comments offended a significant number of viewers, Ms Boyle had not been exploited or humiliated by what was said on the programme, and “that was certainly not the intention of the piece”. It contended that the language and tone of the piece was not an issue of fairness towards Ms Boyle, but rather an issue of what was acceptable to the community.

[24]   The broadcaster considered that the fairness concerns raised in the complaints by PFNZ and Dr Higgins were “best addressed under Standard 1” and it declined to uphold the fairness complaints.

[25]   Looking at Standard 7 (discrimination and denigration), TVNZ stated that a high threshold needed to be crossed before a breach of the standard would be found. It said that “comments will not always breach the prohibition against denigration simply because they are critical of a particular group, because they offend people, or because they are rude”.

[26]   The broadcaster stated that Mr Henry’s comments “were clearly about one person” and were intended to be humorous. It contended that the comments were not aimed at a section of the community as the standard dictated.

[27]   TVNZ argued that “although they may have fallen short of their intent”, the comments were exempted as “legitimate humour”. It contended that the comments had not blackened the reputation of a section of society or denigrated disabled people. TVNZ declined to uphold the complaints that Standard 7 had been breached.

[28]   TVNZ considered that Standard 8 (responsible programming) had been raised by Dr Higgins in her complaint. It pointed out that the standard related to ensuring that programmes were correctly classified, that ratings were displayed and that they did not deceive or disadvantage viewers or cause panic.

[29]   The broadcaster noted that Breakfast was an unclassified news and current affairs programme and argued that nothing contained in the segment would have disadvantaged viewers or caused panic. It declined to uphold the Standard 8 complaint.

[30]   Turning to Standard 9 (children’s interests), TVNZ stated that Breakfast had an adult target audience and maintained that the programme was well known for containing controversial material on occasion. It argued that it was unlikely that children would watch the programme without the company of a parent or other adult and that care-givers were aware of the likely comments and material contained in the show.

[31]   The broadcaster repeated its argument that Mr Henry was well known for his challenging sense of humour and that his comments were intended to be light-hearted and comedic. It contended that Mr Shaskey’s concerns relating to the protection of children and the language and tone of the segment had been adequately addressed in its consideration of Standard 1. It declined to uphold the children’s interests complaint.

Referral to the Authority

[32]   Dissatisfied with the broadcaster’s response, the complainants referred their complaints to the Authority under sections 8(1B)(b)(i) and 8(1B)(b)(ii) of the Broadcasting Act 1989.

Action taken referrals

[33]   Ms Ashurst, Ms Hutchinson, Mr Love, Mr Paramo, PFNZ and Mr Shanks argued that Mr Henry’ s apology was “disingenuous” and “not good enough”, and that the public deserved more accountability. They contended that the action taken by TVNZ after upholding a breach of Standard 1 was inadequate.

Discrimination and denigration referrals

[34]   Ms Ashurst, Ms Dean, Dr Higgins, Ms Hutchinson, Ms McConnochie, Mr Paramo, Mr Shaskey and G Sneath disagreed with TVNZ’s argument that Mr Henry’s comments were “legitimate humour” and maintained that Standard 7 had been breached.

Authority's Determination

[35]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

General Comments

[36]   These complaints concern comments made by the Breakfast host Paul Henry during a brief segment of the show broadcast on 23 November 2009. They have already been the subject of considerable controversy and public debate. 

[37]   We note at the outset that this is an emotionally charged issue. The Authority is aware of the international campaign to ban the words “retard” and “retarded” from the public domain. We acknowledge that for many people the mere presence of the “r-word” is enough to make a broadcast unacceptable. However, as the Authority has consistently held, the word itself cannot be regarded as an automatic breach; context must be taken into account.

[38]   In any event, while these complaints have drawn attention to the debate about the acceptability of using “retarded” and “retard” in broadcasting, it is our view that this distracts from the crux of the complainants’ concerns.

[39]   At the heart of these complaints is the fact that Mr Henry made fun of someone on the basis of intellectual disability, and appeared to invite viewers to join him in the joke. The complainants held that this was both discriminatory and offensive. To “laugh about someone because they may have an intellectual disability and were abused”, as one complainant asserted, went beyond the boundaries of human decency. 

[40]   The complaints fell under two main standards:

• The Standard 7 (discrimination and denigration) complaints were not upheld and have been referred to us for review.

• The Standard 1 (good taste and decency) complaints were upheld by the broadcaster. However, several complainants considered TVNZ had not taken sufficient action to remedy the breach. We have been asked to consider whether TVNZ should have done more.

[41]   As always when the Authority considers complaints of this nature, we find ourselves grappling with competing interests, values and rights. On the one hand is our obligation to uphold and affirm the important right of freedom of expression, which is enshrined in the Bill of Rights Act 1990, and fundamental to the health of a free and democratic society. On the other hand is the expectation of the community that we will uphold standards which reflect societal values consistent with human dignity and the protection of vulnerable sections of the community.

[42]   That this involves a difficult balancing act is reflected in our findings, particularly on discrimination. Against this background we now turn to consider the complaints.

Action Taken Complaints – Standard 1 (good taste and decency)

[43]  We agree with TVNZ’s decision to uphold the complaints under Standard 1 (good taste and decency), and consider that the host's comments amounted to a blatant breach of broadcasting standards.

[44]   Mr Henry’s attitude and behaviour made it clear that he was using the word “retarded” in a pejorative sense to mock and belittle Ms Boyle. We find it relevant that Mr Henry is the popular host of a nationally televised news and current affairs programme which may be regarded as reasonably influential and authoritative. He is a senior broadcaster who sometimes hosts the state broadcaster’s flagship current affairs programme, Close Up.

[45]  The Authority is well acquainted with Mr Henry’s challenging style of humour, and his provocative, irreverent style of delivery. Indeed, we have afforded Mr Henry a great deal of latitude in the past, upholding the broadcaster’s freedom of expression where we considered his comments were merely rude and insulting, or in the context of a legitimate discussion. However, we are unanimous in finding that Mr Henry went too far in this instance. He mocked and belittled Ms Boyle on the basis of her intellectual disability. This is contrary to common decency and a clear breach of the good taste and decency standard.

[46]   Our task on this occasion is to determine whether the broadcaster acted sufficiently and appropriately once it had upheld the complaints under Standard 1. We note that, after TVNZ upheld the complaints, Mr Henry provided a written statement to the broadcaster’s Complaints Committee which was then publicly released.

[47]   We consider that the sentiments expressed in that statement regarding Mr Henry’s “respect for people who rise to the challenges imposed on them in life” were entirely inconsistent with his comments and behaviour shown in the item subject to complaint. We do not consider that it was appropriate in the circumstances for Mr Henry to cast himself as the victim of a misunderstanding. We also note that, while Mr Henry said he was sorry that some people had taken what he had said in a way that he never intended, no apology or statement was made on Breakfast, where the comments were made.

[48]   In these circumstances, we agree with Ms Ashurst, Ms Hutchins, Mr Love, Mr Paramo, PFNZ and Mr Shanks that the action taken by TVNZ was not sufficient to remedy the breach of Standard 1.

[49]   Having reached this conclusion, we must now consider whether to uphold the action taken complaints.

[50]   We acknowledge that upholding the action taken complaints would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. We also acknowledge the importance of section 14 and the values underlying the right to freedom of expression. However, "the right of freedom of expression is not an unlimited and unqualified right".² We must ensure that, if we are considering upholding the complaints, the restriction on the broadcaster’s right to freedom of expression would be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[51]   First, we must assess whether, by upholding these complaints, the limit placed on the broadcaster's section 14 right would be "prescribed by law". Parliament has recognised the importance of reviewing the action taken by broadcasters after upholding complaints in section 8(1B)(b)(ii) of the Broadcasting Act 1989, which states:

A complainant may refer the complaint to the Authority if the complainant –

(b) is dissatisfied with –

(ii) the action taken by the broadcaster.

[52]   For this reason, we consider that upholding an action taken complaint would be prescribed by law. For the same reason, we consider that upholding an action taken complaint would be a justified limitation on the right to freedom of expression.

[53]   Next, we must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold the action taken complaints on this occasion. As discussed above, it is our view that Mr Henry’s comments amounted to a blatant breach of Standard 1 and that the action taken by TVNZ in releasing his statement was insufficient due to the seriousness of the breach. Upholding the action taken complaints would signal the importance of broadcasters taking action which is proportionate to the nature of the breach of standards.

[54]   In these circumstances, we find that upholding the action taken complaints places a justified and reasonable limit on TVNZ’s freedom of expression. We therefore uphold the complaints that the action taken by the broadcaster in relation to Standard 1 was inadequate.

Standard 7 (discrimination and denigration)

[55]   Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community.

[56]   The term "denigration" has consistently been defined by the Authority as blackening the reputation of a class of people (see, for example, Mental Health Commission and CanWest RadioWorks³). It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration in contravention of the standard (see, for example, McCartain and Angus and The Radio Network⁴).

[57]   The term “discrimination” has been defined by the Authority as encouraging the different treatment of members of a particular group, to their detriment (see, for example, Teoh and TVNZ⁵).

[58]   The first question that arises in relation to Standard 7 is whether a section of the community was exposed to any discrimination or denigration by Mr Henry’s comments, or whether they applied to just one person: Susan Boyle, a well-known British singer. A majority of the Authority (Peter Radich, Tapu Misa and Leigh Pearson) considers that our finding under Standard 1 (good taste and decency) leads to a conclusion that Mr Henry’s comments and behaviour were offensive less for their cruelty to Ms Boyle – a distant celebrity who would not have been expected to have heard or perhaps even cared about the comments of someone on the other side of the world – than because the comments ridiculed and derided someone on the basis of intellectual disability. In our view, if a person discriminates against or denigrates a single person on account of that person’s characteristics which are common to others, then other people who have those features or characteristics are also subjected to discrimination or denigration.

[59]   We the majority conclude that Mr Henry’s comments, whether intentionally or unintentionally, extended beyond Ms Boyle and encompassed all members of the community who suffer from intellectual disabilities.

[60]   The second question is whether the broadcaster “encouraged” discrimination against or denigration of this section of the community. We the majority consider that, while Mr Henry’s cruel comments and actions were brief, the message that viewers would have received was that people with intellectual disabilities can be identified and characterised by certain physical features, and are appropriate subjects for ridicule.

[61]   We note that Mr Henry’s comments applied to a particularly vulnerable sector of society whose members cannot easily defend themselves. Further, he actively drew viewers into what he was saying by holding up the magazine and pointing to the photograph of Ms Boyle. The majority considers that such a message clearly encourages the different treatment of people with intellectual disabilities, to their detriment.  

[62]   The majority considers that Mr Henry’s comments and behaviour would have had a significant impact. Television is a powerful social and cultural determiner. Mr Henry, as we have noted earlier, is a high-profile senior broadcaster who both polarises and engages his audience. As the host of Breakfast, a well-rating news and current affairs programme broadcast on the country’s largest free-to-air broadcaster, Mr Henry occupies a privileged position. Even if Mr Henry himself is not considered influential, he commands a platform that is regarded as such by a significant number of New Zealanders. We consider that Mr Henry’s comments and behaviour – including his casual assumption that his audience should share his sentiments – had the effect of reinforcing and legitimising particularly repugnant attitudes towards intellectually disabled people.

[63]   As noted in paragraph [45], the Authority has previously considered several complaints in relation to Mr Henry. In the majority of cases, the broadcaster has been allowed considerable leeway where we considered that the comments in question were merely rude, insulting, or a provocative comment in the context of a discussion about a legitimate issue. On this occasion we can find nothing to redeem or excuse Mr Henry’s behaviour or comments. It could not be said to be remotely connected to serious comment, opinion or analysis, nor was it “legitimate” humour or satire. Rather, it was more akin to the kind of cruel jibe more usually heard in a schoolyard setting. We consider that it had no place in a national news and magazine programme carried by the state broadcaster.

[64]   Having reached this conclusion, the majority must now decide whether to uphold the complaints as a breach of Standard 7.

[65]    The majority acknowledges that upholding the action taken complaints would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. The majority also acknowledges the importance of section 14 and the values underlying the right to freedom of expression. However, "the right of freedom of expression is not an unlimited and unqualified right".⁶ We must ensure that, if we are considering upholding the complaints, the restriction on the broadcaster’s right to freedom of expression would be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[66]   First, we must assess whether, by upholding these complaints, the limit placed on the broadcaster's section 14 right would be "prescribed by law". Parliament has recognised the importance of preventing the encouragement of discrimination and denigration of sections of the community in section 21(1)(e)(iv) of the Broadcasting Act 1989, which states:

(1) The functions of the Authority shall be –

(e) To encourage the development and observance by broadcasters of codes of broadcasting practice appropriate to the type of broadcasting undertaken by such broadcasters in relation to –

(iv) Safeguards against the portrayal of persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, race, age, disability, or occupational status or as a consequence of legitimate expression of religious, cultural or political beliefs.

[67]   Further, the Codes of Broadcasting Practice have been developed in conjunction with broadcasters and approved by the Authority. The requirement in Standard 7 is drafted in accordance with Parliament's intention, and the wording closely matches that in section 21(1)(e)(iv) above. For this reason, we consider that upholding a complaint that the broadcaster encouraged discrimination would be prescribed by law.

[68]   Second, we must consider whether upholding the Standard 7 complaints would be a justified limitation on the right to freedom of expression. We have previously stated that the objective behind the discrimination and denigration standard is to prevent broadcasts that blacken the reputation of a class of people or encourage the different treatment of a section of the community to their detriment based on specific factors such as a disability (see, for example, Duff and TVWorks Ltd⁷). In our view, safeguarding against the discrimination and denigration of sections of the community in programmes places a justified limitation on TVNZ’s freedom of expression.

[69]   Third, the majority must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 7 on this occasion. As discussed above in paragraph [60], Mr Henry’s comments were cruel and discriminatory, because they conveyed the message that people with intellectual disabilities are appropriate subjects for ridicule. We consider that broadcasters have a responsibility to ensure that they do not reinforce and legitimise prejudice against particularly vulnerable sectors of the community through their own actions and behaviour.

[70]   In these circumstances, the majority concludes that upholding the complaints places a justified and reasonable limit on TVNZ’s freedom of expression. We therefore uphold the complaints made by Ms Ashurst, Ms Dean, Dr Higgins, Ms Hutchinson, Ms McConnochie, Mr Paramo, Mr Shaskey and G Sneath that the item breached Standard 7.

[71]   A minority of the Authority (Mary Anne Shanahan) is of the view that the comments were not sufficient to “encourage” denigration of or discrimination against a section of the community.

[72]   The minority agrees with the broadcaster that the comments were clearly about one person and not aimed at a section of the community as the standard dictates. Mr Henry's comments were brief, and they were neither repeated nor sustained. He made no reference to anyone other than Ms Boyle. Mr Henry states that he did not intend for his comments to be understood as extending to anyone other than Ms Boyle at whom they were so unfortunately directed. Clearly, some viewers were offended that his comments implied that it was acceptable to laugh about a person's disabilities. However, the minority considers that any reference extending beyond Ms Boyle as an individual to a section of the community was too oblique to constitute "encouragement" of discrimination against or denigration of that group.

[73]   Mr Henry is well known for making provocative remarks of this type. He has previously made an equally cruel and offensive observation of a person's physical characteristics (see Brown and TVNZ⁸ ). That item, and the item currently subject to complaint, clearly breached Standard 1. However, Standard 7 is not breached simply because the comment may be interpreted as critical of a particular group, or because it offends people, or is rude.

[74]   The minority does not believe Mr Henry's comments would have had the effect of encouraging denigration of or discrimination against those members of the community who suffer from intellectual disabilities. The minority doubts whether his views are influential or credible to viewers other than those who happen to hold the same views.

[75]   The minority also notes that, given the right to free speech contained in the Bill of Rights Act 1990, a high level of invective, encouraging discrimination, is necessary for the Authority to conclude that a broadcast contravenes Standard 7. She considers there was insufficient invective in the item to justify interfering with the broadcaster’s right to freedom of expression under the Bill of Rights Act 1990. The minority would decline to uphold a breach of Standard 7.

For the above reasons the Authority upholds the complaints that the action taken by Television New Zealand Ltd in upholding complaints that an item on Breakfast broadcast on 23 November 2009 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice was insufficient.

A majority of the Authority also upholds the complaints that the episode of Breakfast breached Standard 7 of the Free-to-Air Television Code of Broadcasting Practice.

[76]   Having upheld the action taken and Standard 7 complaints, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. We invited submissions on orders from the parties.

Submissions on Orders

Complainants’ submissions on orders

[77]   Ms Ashurst submitted that TVNZ should be ordered to make a public statement that “recognises the hurt and damage that can be caused by the inappropriate use of a word like ‘retard’”. She also considered that Mr Henry should make “a more sincere” public apology and that it should be broadcast.

[78]   Dr Higgins submitted that TVNZ should be ordered to publish a statement outlining the Authority’s findings and broadcast an apology on TV One for a period of 24 hours. She stated that Mr Henry should be ordered to make a public apology during Breakfast and at a hui comprising of people with intellectual disabilities, their family and friends. She considered that the complaints should be referred back to TVNZ for re-consideration in order to “make amends”, and that the broadcaster should be ordered to pay $5,000 costs to the Crown.

[79]   Ms Hutchinson submitted that TVNZ should publish a statement which related to the complaint and broadcast a “real” apology from Mr Henry. She also considered that TVNZ should pay $5,000 in costs to the Crown.

[80]   Mr Love submitted that TVNZ should be ordered to broadcast a public apology “close to the news hour” and release a copy to the print media. He stated that Mr Henry should “be directed by TVNZ to compose a letter of apology to Ms Boyle” and release it to all news media in New Zealand and the United Kingdom. He also considered that the broadcaster should be ordered to pay a “substantial” fine.

[81]   Ms McConnochie submitted that the broadcaster should publish an apology in a manner specified by the Authority and that it should be delivered by a senior TVNZ executive, rather than Mr Henry. She believed that TVNZ should be made to broadcast a statement summarising the Authority’s decision and why the complaints were upheld, and pay $5,000 costs to the Crown. She considered that the money should be paid to IHC NZ Ltd or another agency supporting people with intellectual disabilities.

[82]   Mr Paramo submitted that an order be imposed directing TVNZ to make a full apology and that it be broadcast during an advertisement break in an episode of Breakfast, which would normally be filled by paying advertisers. He considered that TVNZ should be required to “develop a plan” to improve its “broadcasting standards”, and be ordered to pay the “maximum fine” of $5,000 to be donated to a charity dealing with people suffering from intellectual disabilities.

[83]   PFNZ submitted that TVNZ should broadcast an apology by Mr Henry during an episode of Breakfast at the same time the item subject to complaint was broadcast. It considered that the apology should be directed to the “offence caused to disabled people, their families and concerned members of the public, and not for any offence taken by members of the viewing audience”.

[84]   Mr Shanks submitted that TVNZ should be ordered to publish and broadcast “in all media” a profound apology which reflected the comments and decision of the Authority. He considered that TVNZ should pay $5,000 costs to the Crown and that the money should be donated to a reputable charity dealing with disabled people.

[85]   Mr Shaskey submitted that TVNZ should be ordered to cease advertising for 24 hours.

[86]   Mr Sneath submitted that the Authority should impose the “maximum penalty” on TVNZ to “send a clear and unequivocal message that our social values and broadcasting standards must be respected and adhered to.”

Broadcaster’s submissions on orders

[87]   TVNZ submitted that the Authority should not make any orders in relation to the Standard 7 complaint, noting that it was a majority decision to uphold that aspect of the complaint.

[88]   The broadcaster accepted that it was appropriate for the Authority to order a broadcast statement summarising the Standard 1 (action taken) part of the decision.

Authority’s Decision on Orders

[89]   We have considered the submissions on orders from the parties. We are of the view that it is appropriate to order TVNZ to broadcast a statement containing a comprehensive summary of this decision. We agree with TVNZ that the statement should be confined to the unanimously upheld aspect of the decision relating to the action taken complaints under Standard 1. The statement must be presented verbally and also visually on screen (as per the Authority’s usual practice), within one month of the date of this decision. We also stipulate that the statement must be broadcast on a Monday morning either directly before or directly after the “What’s in the Mags” segment.

[90]   We note that some complainants asked the Authority to make orders such as making TVNZ donate money to charity. The Authority has no power to make such orders under the Broadcasting Act 1989.

[91]   With respect to the complainants’ submissions that TVNZ should be ordered to make a public apology, we note that the Authority has ordered apologies only rarely and in exceptional circumstances. Furthermore, apologies are generally ordered in favour of a particular individual who has been directly affected by a broadcast, as opposed to general public apologies. We do not consider that an apology is warranted in this case.

[92]   In our view, the broadcast of a statement on Breakfast will be appropriate and sufficient to remedy the original breach of Standard 1 (good taste and decency). We do not consider that any other orders are warranted on this occasion.

[93]   We have considered the New Zealand Bill of Rights Act 1990 and the principle of freedom of expression in ordering the broadcast of a statement under section 13(1)(a) of the Broadcasting Act 1989. On this occasion we are satisfied that the order we have made is consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Order

Pursuant to section 13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision 

• be broadcast during Breakfast on a Monday, on a date to be approved by the Authority

• be broadcast either directly before or after the “What’s in the Mags” segment

• contain a summary of the action taken (good taste and decency) aspect of the Authority’s decision.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Peter Radich
Chair
6 July 2010

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

Gillian Ashurst’s complaint

1.           Gillian Ashurst’s formal complaint – 23 November 2009

2.          TVNZ’s response to the formal complaint – 21 December 2009

3.          Ms Ashurst’s referral to the Authority – 25 January 2010

4.          TVNZ’s response to the Authority – 4 February 2010

5.          Ms Ashurst’s submissions on orders – 21 May 2010

6.          TVNZ’s submissions on orders – 4 June 2010

Marian Dean’s complaint

1.           Marian Dean’s formal complaint – 24 November 2009

2.          TVNZ’s response to the formal complaint – 21 December 2009

3.          Ms Dean’s referral to the Authority – 22 January 2010

4.          TVNZ’s response to the Authority – 4 February 2010

 Dr Nancy Higgins’ complaint

1.           Dr Nancy Higgins’ formal complaint – 26 November 2009

2.          TVNZ’s response to the formal complaint – 21 December 2009

3.          Dr Higgins’ referral to the Authority – 11 January 2010

4.          TVNZ’s response to the Authority – 4 February 2010

5.          Dr Higgins’ submissions on orders – 24 May 2010

6.          TVNZ’s submissions on orders – 4 June 2010

Janet Hutchinson’s complaint

1.           Janet Hutchinson’s formal complaint – 28 November 2009

2.          TVNZ’s response to the formal complaint – 21 December 2009

3.          Ms Hutchinson’s referral to the Authority – 12 January 2010

4.          TVNZ’s response to the Authority – 4 February 2010

5.          Ms Hutchinson’s submissions on orders – 19 May 2010

6.          TVNZ’s submissions on orders – 4 June 2010

Peter Love’s complaint

1.           Peter Love’s formal complaint – 8 December 2009

2.          TVNZ’s response to the formal complaint – 21 December 2009

3.          Mr Love’s referral to the Authority – 3 January 2010

4.          TVNZ’s response to the Authority – 4 February 2010

5.          Mr Love’s submissions on orders – 20 May 2010

6.          TVNZ’s submissions on orders – 4 June 2010

Karen McConnochie’s complaint

1.           Karen McConnochie’s formal complaint – 26 November 2009

2.          TVNZ’s response to the formal complaint – 21 December 2009

3.          Ms McConnochie’s referral to the Authority – 14 January 2010

4.          TVNZ’s response to the Authority – 4 February 2010

5.          Ms McConnochie’s submissions on orders – 23 May 2010

6.          TVNZ’s submissions on orders – 4 June 2010

Robert Paramo’s complaint

1.           Robert Paramo’s formal complaint – 29 November 2009

2.          TVNZ’s response to the formal complaint – 21 December 2009

3.          Mr Paramo’s referral to the Authority – 24 January 2010

4.          TVNZ’s response to the Authority – 4 February 2010

5.          Mr Paramo’s submissions on orders – 17 May 2010

6.          TVNZ’s submissions on orders – 4 June 2010

People First New Zealand Inc’s complaint

1.           People First New Zealand Inc’s formal complaint – 30 November 2009

2.          TVNZ’s response to the formal complaint – 21 December 2009

3.          PFNZ’s referral to the Authority – 20 January 2010

4.          TVNZ’s response to the Authority – 4 February 2010

5.          PFNZ’s submissions on orders – 18 May 2010

6.          TVNZ’s submissions on orders – 4 June 2010

Mark Shanks’ complaint

1.           Mark Shanks’ formal complaint – 30 November 2009

2.          TVNZ’s response to the formal complaint – 21 December 2009

3.          Mr Shanks’ referral to the Authority – 28 December 2009

4.          TVNZ’s response to the Authority – 4 February 2010

5.          Mr Shanks’ submissions on orders – 20 May 2010

6.          TVNZ’s submissions on orders – 4 June 2010

Trevor Shaskey’s complaint

1.           Trevor Shaskey’s formal complaint – 23 November 2009

2.          TVNZ’s response to the formal complaint – 21 December 2009

3.          Mr Shaskey’s referral to the Authority – 6 January 2010

4.          TVNZ’s response to the Authority – 4 February 2010

5.          Mr Shaskey’s submissions on orders – 24 May 2010

6.          TVNZ’s submissions on orders – 4 June 2010

G Sneath’s complaint

1.           G Sneath’s formal complaint – 27 November 2009

2.          TVNZ’s response to the formal complaint – 21 December 2009

3.          G Sneath’s referral to the Authority – 11 January 2010

4.          TVNZ’s response to the Authority – 4 February 2010

5.          Mr Sneath’s submissions on orders – 22 May 2010

6.          TVNZ’s submissions on orders – 4 June 2010

¹Decision No. 2009-049

²P v D and Independent News Auckland Ltd [2000] 2 NZLR 591, at 599, per Nicholson J

³Decision No. 2006-030

⁴Decision No. 2002-152

⁵Decision No. 2008-091

⁶P v D and Independent News Auckland Ltd [2000] 2 NZLR 591, at 599, per Nicholson J

⁷Decision No. 2010-003

⁸Decision No:  2009-049